Local regulations, court cases being closely watched

Anti-fracking forces across the country have tapped into local governments to get them to tap the brakes on fracking, a technological advance that allows energy companies to extract oil and gas from deep rock formations by pressure-pumping them with sand, water and chemicals.

Some states allow communities to regulate the energy industry, but some do not, according to Deborah Goldberg, a New York attorney with Earthjustice, a national nonprofit known for using the court system to protect the environment and people’s health.

“Local authority varies substantially depending on the state you are in,” Goldberg said in a press briefing Friday.

Municipal attorneys and citizen groups are watching cases in Denton, Colorado, California, New York, Ohio and Pennsylvania — as is the energy industry.

A prepared statement from the Texas Independent Producers and Royalty Owners Association, sent on behalf of its president, Ed Longanecker, offered hope that Denton residents would be able to separate fact from fiction, stating that hydraulic fracturing is safe and effective.

The statement called on Texans to make up their own minds and be “more supportive of an industry that has been the cornerstone of our state and economy for over a century.”

According to the association’s statement, environmental groups are “willing to do and say whatever is necessary to stop responsible energy development in our state and country. These groups, primarily based in San Francisco, New York, or Washington, D.C., are spending millions and spreading their anti-science message to scare voters throughout the country.”

The Texas Oil and Gas Association said that a ban in Denton may not be legally defensible, given that operators already have permits for nearly 300 wells in the city limits.

“It’s important that local ordinances do not conflict with valid legal agreements or existing statutes and regulations,” Deb Mamula, the group’s executive vice president, said in a prepared statement.

A decision from New York state’s highest court on Norse Energy vs. Town of Dryden could come as soon as this week, according to Goldberg. More than 170 cities in New York have used their zoning authority, as Dryden did, to ban fracking.

In Ohio, some cities moved to regulate fracking under local control they had until the Ohio Legislature started rolling back the authority, Goldberg said. The city of Munroe Falls sued Beck Energy to enforce its ordinance. That case is before the Ohio Supreme Court, which heard oral arguments in February. Residents there are still waiting for the court’s decision.

The Pennsylvania Legislature made a similar move against local authority. A group of residents sued to strike down the law. The state’s highest court agreed that the law substantially violated due process and people’s reliance on rational zoning regulations.

According to Jordan Yeager, a partner in the Pennsylvania law firm Curtin & Heefner, the court underscored the importance of local government in protecting quality of life.

“They made it crystal clear that municipalities in Pennsylvania have a constitutional duty to protect residents from industrial activity,” Yeager said.

In Colorado, several cities have declared a long-term moratorium or banned fracking despite pressure from the governor’s office.

Michael Freeman, of Earthjustice in Denver, said state officials took a strong stand against local regulation, including suing the city of Longmont. That has launched a flurry of drives for statewide initiatives to reinstate local control. Coloradans should know in August which initiatives make it to the ballot, Freeman said.

Californians have not seen such a challenge to local control, according to Rachel Hooper, a managing partner with Shute, Mihaly & Weinberger. The cities of Beverly Hills and Santa Cruz have already adopted fracking bans. Butte, Santa Barbara and Santa Cruz counties are expected to adopt bans. The cities of Los Angeles, Culver City and Compton are expected to adopt moratoriums, she said.

In their petition to ban fracking locally, a group of Denton residents drafted an ordinance based on the city’s authority to protect the health and safety of residents and avoided the zoning question, according to Cathy McMullen, who helped organize the drive.

Adam Briggle, who also worked on the petition, said that previous attempts by residents to make fracking compatible with the community had failed. A large portion of the city’s land, mostly on the west side, has been permitted for drilling.

Many long-standing permits were issued by the fire department, not the planning department, which means, in those cases, the city has little say where wells can go, he said.

“They [energy companies] can frack as many wells as they want in perpetuity,” Briggle said.

After negotiations with one company holding such permits broke down in early May, the Denton City Council enacted a moratorium until September to shore up its gas well development ordinance.

The council is expected to hold a public hearing on the local initiative to ban fracking on July 15. Nearly 2,000 residents signed the petition proposing an ordinance that would ban fracking in the city limits. The council has until the beginning of August to either accept or reject it.

Organizers expect, and many council members have signaled, that the ordinance initiative will be rejected. If so, the anti-fracking initiative would go to Denton voters in November.

Should Denton voters approve the ban, it would be the first of its kind in Texas.

PEGGY HEINKEL-WOLFE can be reached at 940-566-6881 and via Twitter at @phwolfeDRC.

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